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Gonzales v. Director TDCJ-CID

United States District Court, N.D. Texas, Wichita Falls Division

March 12, 2019

PABLO GONZALES, JR., Petitioner,
v.
DIRECTOR TDCJ-CID, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HAL R. RAY, JR. UNITED STATES MAGISTRATE JUDGE

         Before the Court is Pablo Gonzales, Jr.'s (“Petitioner”) 28 U.S.C. § 2254 habeas corpus petition (ECF No. 1) filed on January 22, 2018; Memorandum in Support (ECF No. 9) filed on February 27, 2018; Respondent's Response (ECF No. 16) filed on June 8, 2018; Administrative Records (ECF Nos. 18-20) filed on June 8, 2018; and Petitioner's Traverse Brief (ECF No. 24) filed on September 24, 2018. After considering the pleadings and applicable law, the undersigned RECOMMENDS that United States District Judge Reed O'Connor DENY Petitioner's petition (ECF No. 1).

         I. FACTUAL BACKGROUND

         On January 29, 2015, Petitioner was convicted of one count of aggravated sexual assault and three counts of indecent contact with a child in the 90th Judicial District Court of Young County, Texas. (ECF No. 1 at 2; ECF No. 9 at 1). Following his conviction, Petitioner filed a direct appeal in the Second Court of Appeals in Fort Worth, Texas, which affirmed his conviction on September 24, 2015. (ECF No. 1 at 3). He filed several petitions for discretionary review (“PDR”) in the Texas Court of Criminal Appeals (“TCCA”) (see cause nos. PD1398-15; PD1399-15; PD1400-15; PD1401-15). (Id.). These petitions were denied on December 16, 2015. (Id.).

         Additionally, Petitioner filed several state habeas corpus petitions (see cause nos. WR-85, 344-01; WR-85, 344-02; WR-85, 344-03; WR-85, 344-04) in the 90th Judicial District Court of Young County, Texas. (Id.). These petitions were denied in November 2015. (Id. at 4). He also filed a PDR in the TCCA. (Id.). The TCCA denied his petition without written order on May 24, 2017. (Id.).

         Petitioner has now filed this § 2254 habeas corpus petition. (See ECF No. 1). He argues that: (1) he is actually innocent; (2) there is no evidence to support his convictions; (3) the prosecution allegedly made racially motivated and discriminatory peremptory strikes during the jury selection process; and (4) he received ineffective assistance of counsel. (ECF No. 9 at 2). Petitioner requests that his conviction be reversed and remanded to the trial court with instructions to enter a judgment of acquittal. (Id. at 37). In response, Respondent argues that the Court should deny Petitioner's petition because his claims are either procedurally barred or meritless. (See ECF No. 16).

         Petitioner replies that he is actually innocent because: (1) victim Jane Doe D was murdered by her sexual abuser, and her murderer likely was responsible for the crimes Petitioner was accused of committing against her; and (2) many of the victims were sexually abused by “other men, ” who likely were responsible for the crimes Petitioner was accused of committing against them. (ECF No. 24 at 5-6). Petitioner avers that the prosecution did not meet its burden of proof to uphold his convictions, and that it withheld exculpatory evidence at trial. (Id. at 7-8). Petitioner also makes new allegations against his trial attorneys to support his ineffective assistance of counsel claim. (See Id. at 9-12, 14). Finally, Petitioner requests that the Court grant his § 2254 habeas corpus petition, and in the alternative, grant an evidentiary hearing. (Id. at 14).

         II. LEGAL STANDARD

         A. AEDPA Standard for § 2254 Habeas Cases

         Under the Antiterrorism and Effective Death Penalty Act of 1996, “a federal court may grant a state prisoner's application for a writ of habeas corpus if the state-court adjudication pursuant to which the prisoner is held ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'” Howes v. Fields, 565 U.S. 499, 505 (2012) (quoting 28 U.S.C. § 2254(d)(1)).

         “[A] state court decision is contrary to . . . clearly established [federal law] if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks omitted). “It is an unreasonable application of Supreme Court precedent ‘if the state court identifies the correct governing legal rule from [the] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.'” Salts v. Epps, 676 F.3d 468, 473-74 (5th Cir. 2012) (alteration in original) (quoting Williams v. Taylor, 529 U.S. 362, 407 (2000)).

         To obtain habeas relief under § 2254, “a state prisoner must show that the state court's ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for [fair-minded] disagreement.” White v. Woodall, 572 U.S. 415, 419-20 (2014) (quotation omitted). “If this standard is difficult to meet, that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

         III. ANALYSIS

         A. Actual Innocence

         “Actual innocence means ‘factual innocence' and not mere legal insufficiency.” Murray v. Davis, No. 3:16-CV-3305-L (BT), 2018 WL 3829806, at *13 (N.D. Tex. June 14, 2018) (citing Bousley v. United States, 523 U.S. 614, 623 (1998)); see also United States v. Jones, 172 F.3d 381, 384 (5th Cir. 1999). “A claim of actual innocence must be based on reliable evidence not presented at trial.” Murray, 2018 WL 3829806 at *13 (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)). “[W]here a petitioner asserts his actual innocence of the crime, he must show, as a factual matter, that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence presented in his habeas petition.” Id. at 327. New evidence means “relevant evidence that was either excluded or unavailable at trial.” Schlup, 513 U.S. at 328.

         Petitioner argues that had exculpatory evidence of medical examination reports pertaining to two of the sexual abuse victims been given to him at his trial, he would have been declared innocent of the crimes. (ECF No. 9 at 7, 10). Petitioner, however, presents no new evidence in support of his actual innocence claim. Moreover, the evidence in the record supports the proposition that the medical examination reports were available and admitted into evidence at his trial. (See ECF No. 19 at 49-58, 64). Because Petitioner did not present newly discovered evidence that likely would have altered the guilty verdict rendered by the jury in his trial, his actual innocence claim must be denied. Petitioner attempts to bolster his actual innocence claim by arguing that he received ineffective assistance of counsel. (ECF No. 9 at 6-10). Petitioner asserts that had his attorneys requested and presented the medical examination reports of two of the victims at his trial, he “could have been ‘Acquitted' [sic] of the ‘false charges.'” (Id. at 7, 9). The undersigned addresses this ineffective assistance of counsel argument later in the analysis. Nevertheless, Petitioner's actual innocence claim fails.

         B. No. Evidence

         Petitioner argues that there is no evidence to support each element of the charged crimes, and that there is no evidence to support the jury's guilty verdict. (Id. at 11). He asserts that there is no evidence that corroborates Jane Doe A's testimony. (Id.). Particularly, Petitioner argues that the prosecution failed to prove beyond a reasonable doubt that he had the intent or knowledge to commit the crimes of which he was convicted. (Id. at 12). Petitioner further argues that the prosecution did not prove beyond a reasonable doubt that he penetrated the alleged victims' sexual organs or anus. (Id.).

         Before addressing the merits of this claim, the undersigned notes that Petitioner is procedurally barred from asserting it because he did not raise this claim in his PDR to the TCCA. (See ECF No. 16 at 9; ECF No. 18 at 1507-42; ECF No. 19 at 2-3). Under 28 U.S.C. § 2254(b), “[a] petitioner must fully exhaust state remedies before seeking federal habeas relief.” To exhaust in accordance with § 2254, a petitioner must fairly present the factual and legal basis of any claim to the highest available state court for review prior to raising it in federal court. Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). In Texas, a prisoner must present his claim to the TCCA in a PDR or an application for writ of habeas corpus. Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson, 762 F.2d at 432. As a matter of comity, the state courts must have a fair opportunity to hear and consider the claims raised by an applicant before those claims are heard in federal court. Picard v. Connor, 404 U.S. 270, 275 (1971). Because Petitioner did not give the TCCA a fair opportunity to hear and consider this claim, he is procedurally barred from asserting it.

         Even if Petitioner's no evidence claim were not procedurally barred, it is unpersuasive. When considering a no evidence claim, a federal court must consider whether in viewing the evidence “in the light most favorable to the prosecution, any rational trier of fact could have found the existence of facts necessary to establish the essential elements of the offense beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). “This standard is applied with “explicit reference to the substantive elements of the criminal offense as defined by state law.” Dupuy v. Cain, 201 F.3d 582, 589 (5th Cir. 2000) (internal quotations omitted). The elements of aggravated sexual assault are:

the person . . . (B) regardless of whether the person knows the age of the child at the time of the offense, intentionally or knowingly: (i) causes the penetration of the anus or sexual organ of a child by any means . . . (iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor . . . and (2) if . . . (B) the victim is younger than 14 years of age, regardless of whether the person knows the age of the victim at the time of the offense . . . .

Tex. Penal Code § 22.021(a) (West 2011). The elements of indecency with a child by contact are:

(a) A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex and regardless of whether the person knows the age of the child at the time of the offense, if the person: (1) engages in sexual contact with the child or causes the child to engage in sexual contact; or (2) with intent to arouse or gratify the sexual desire of any person: (A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or (B) causes the child to expose the child's anus or any part of the child's genitals.

Tex. Penal Code § 21.11(a) (West 2011).

         In applying the Texas criminal statutes to the evidence presented at Petitioner's trial, there is ample evidence to support the jury's guilty verdict for both crimes. For instance, although Petitioner alleges that his trial attorneys did not request a medical examination report for Jane Does A and C and that this “exculpatory evidence” was not presented at his trial, a medical examination report as to both Jane Does A and C is in the record. (See ECF No. 19 at 49-58). Bolstering the fact that medical examination reports were available during the trial is the affidavit of ...


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